Los Angeles Unified School District (Mego) (PERB 0894E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANK T. 	MEGO, 	JR.,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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)
) 	Case No. 	LA-CE-3059
PERB 	Decision No. 	894
July 29, 	1991
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)
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Appearance: 	Frank T. 	Mego, 	Jr., 	on his own behalf.
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Frank T. 	Mego, 	Jr.
(Mego) 	of a Board agent's dismissal 	(attached hereto) 	of a charge
that 	the 	Los 	Angeles 	Unified 	School 	District 	committed 	an unfair
practice by violating 	section 	3543.5(a) 	of 	the Educational
Employment Relations Act 	(EERA).1 The Board has 	reviewed the
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to 	interfere with, restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
)
__________ )

dismissal, 	and finding it to be free of prejudicial error, 	adopt
it as 	the decision of the Board 	itself.2
The unfair practice charge 	in Case No. 	LA-CE-3059 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Shank and Camilli 	joined 	in this 	Decision.
2In his 	complaint, 	Mego alleges 	a violation of Education
Code 	section 45116. 	However, 	it 	should be noted that PERB is
without 	jurisdiction to 	enforce provisions 	of 	the 	Education Code,
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 1, 	1991
Frank T. 	Mego Jr.
Re: 	Frank T. 	Mego Jr. 	v. 	Los Angeles Unified School
District. 	Unfair Practice Charge No. 	LA-CE-3059, 	First
Amended Charge, 	DISMISSAL OF CHARGE AND REFUSAL TO
ISSUE 	COMPLAINT
Dear Mr. 	Mego:
The above-referenced charge was 	filed on January 30, 	1991. 	It
alleges 	that 	the Los Angeles 	Unified 	School 	District 	(District)
took 	adverse 	action 	against 	you 	and 	committed 	an unfair practice
by violating Education Code, 	Section 	45116.1 I 	am treating this
matter as 	a 	reprisal/discrimination case 	alleging 	a 	violation of
1This section is 	found at Exhibit B, 	attached to 	the charge,
and provides,
A 	notice 	of 	disciplinary 	action 	shall 	contain
a 	statement 	in 	ordinary 	and 	concise 	language
of 	the 	specific 	acts 	and 	omissions 	upon which
the disciplinary action is based, 	a 	statement
of the cause for the action taken and, 	if 	it
is 	claimed 	that 	an employee has 	violated 	a
rule 	or regulation of 	the public 	school
employer, 	such rule or regulation 	shall 	be
set 	forth 	in said notice.
A 	notice 	of 	disciplinary 	action 	stating 	one
or more 	causes 	or 	grounds 	for disciplinary
action established by any rule, 	regulation,
or statute 	in the 	language of 	the rule,
regulation, 	or statute, 	is 	insufficient for
any purpose.
A proceeding may be brought by, 	or on behalf
of, 	the 	employee to restrain any 	further
proceedings 	under 	any 	notice 	of 	disciplinary
action violative of 	this provision.
This 	section 	shall 	apply 	to proceedings
conducted 	under the provisions 	of Article 	6
(commencing with Section 45240) 	of 	this
chapter.

Dismissal 	of 	Charge 	and 	Refusal
to 	Issue 	Complaint
LA-CE-3059
May 	1, 	1991
Page 2
the Education Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a).
I 	indicated to you 	in my attached 	letter dated April 	12, 	1991
that 	the 	above-referenced 	charge did 	not 	state 	a 	prima 	facie
case. 	You were advised that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised that unless 	you
amended the charge to 	state a prima 	facie case, 	or withdrew it
prior to April 	19, 	1991, 	the charge would be dismissed.
You 	filed a First Amended Charge on April 	17, 	1991 	(Certified
Mail). 	It is 	identical to the initial unfair practice charge in
all respects 	except that you have added Exhibit 	"E" 	and the
following 	paragraph:
In accordance with 	stipulated grievance
procedures 	contained in Article 	5, 	section
1.1 	of the Unit E 	(Skilled Crafts) 	Agreement
of 	the Los Angeles 	Unified 	School 	District
and Los 	Angeles 	County Building 	and
Construction Trades Council, 	my appeals
procedure 	for disciplinary 	action was
exhausted on November 21, 	1990 	(See exhibit
E ) . 	In conformity with EERA section 3541.5a,
where it states 	in pertinent part, 	'The Board
shall, 	in determining whether the 	charge was
timely filed, 	consider the 	six-month
limitation 	set 	forth 	in this 	subdivision to
have been tolled during the 	time 	it 	took the
charging party 	to 	exhaust 	the 	grievance
machinery,' 	the unfair practice 	charge,
referred to as Charge No. 	LA-CE-3059, 	was
timely 	filed 	in the 	Los Angeles 	Regional
Office of 	the 	Public 	Relations 	Board 	on
January 30, 	1991, 	approximately three months
within the tolling consideration. 	If 	it 	is
the 	intention of the Board Agent, 	Marc
Hurwitz, 	to obstruct in this matter by
dismissing this 	Unfair Practice Charge, 	No.
LA-CE-3059, 	then I must appeal that
determination to 	the 	Board.
Your Amended Charge 	fails 	to 	state a prima 	facie 	case. 	As
indicated in the April 	12, 	1991 	letter, 	you received the Notice
of 	Unsatisfactory 	Service 	or Act 	and 	notice 	of 	the 	recommended

Dismissal 	of 	Charge 	and Refusal
to 	Issue 	Complaint
LA-CE-3059
May 	1, 	1991
Page 3
three day suspension on or about May 2, 	1990. 	See Exhibits 	"A"
and 	"D" 	attached to the First Amended Charge. 	The 	statute of
limitations 	began to run on or about May 	3, 	1990 	and expired 	six
month 	later unless 	there was 	statutory tolling2 through 	the
filing of a grievance. 	See California State University,
Fullerton 	(1986 	and 	1987) 	PERB Decision Nos. 	605-H and 	605a-H.
Your 	First Amended 	Charge 	incorrectly 	states 	or 	implies 	that 	the
statute began to run on November 21, 	1990 when your appeal 	to the
Personnel Commission was 	in effect denied or exhausted. 	Contrary
to your assertion, 	tolling in this 	case 	is 	inappropriate. 	First,
the Agreement does 	not permit a grievance 	to be 	filed 	in a 	case,
such as 	this 	one, 	involving discrimination/reprisal 	for your
union activity 	(conduct 	arguably prohibited by Article VII 	of 	the
Agreement).3 Article V, 	Grievance Procedure, 	section 	1.0,
Grievance Defined, 	and section 	1.1 provide:
1.0 	A 	'grievance' 	is 	defined as 	a 	claim
by 	an 	employee 	covered by 	this Agreement 	that
the 	District has 	violated an express 	term of
this Agreement 	and that by reason of 	such
violation the 	employee's 	rights 	under 	this
Agreement 	have 	been 	adversely 	affected.
1.1 	All 	other matters 	and disputes 	of
any nature 	are beyond the 	scope 	of 	this
grievance procedure, 	including but not
limited 	to 	those 	matters 	for which other
methods 	of 	adjustment 	are provided by 	the
District, 	such as reductions in force,
examination results 	and 	references,
performance evaluations, 	disciplinary
matters. 	and 	complaints 	by one 	employee
about 	another. 	Also 	excluded 	from this
grievance procedure 	are 	those matters 	so
Tolling 	only 	occurs 	if 	the Agreement provides 	for binding
arbitration, 	which 	in this 	case 	it arguably does 	(Article V,
section 	16.0), 	and only during the period 	it takes 	to exhaust the
grievance machinery. 	EERA section 3541.5(a). 	The April 	12, 	1991
letter 	indicated 	that there 	is 	no 	equitable 	tolling.
3See Footnote No. 	3 of the April 	12, 	1991 	letter.
4Notices 	of 	Unsatisfactory 	Service 	or Act 	are 	handled 	at
Article X, 	Evaluation Procedures, 	of the Agreement.

Dismissal 	of 	Charge 	and 	Refusal
to 	Issue 	Complaint
LA-CE-3059
May 	1, 	1991
Page 4
indicated 	elsewhere 	in this Agreement.
Claimed violations 	of Article VII 	(Non-
Discrimination) 	are to be handled under
appropriate 	statutory procedures 	rather 	than
under this 	grievance procedure. 	(Emphasis
added.)
Second, 	you 	in 	fact did not 	file a grievance or utilize the
grievance machinery under the Article V, 	Grievance 	Procedure.
Instead, 	you 	contested this 	matter through 	an appeals 	procedure
ending with 	the 	decision of 	the 	Personnel 	Commission on November
21, 	1990, 	Exhibit "E" attached to the First Amended Charge.
Thus, 	the First Amended Charge does 	not 	state 	sufficient 	facts
for the 	statute 	to have been tolled. 	As 	you received the Notice
of 	Unsatisfactory Service or Act on or about May 2, 	1990, 	the
statute 	began to 	run on May 	3, 	1990 	and 	thereafter ran out on or
about November 2, 	1990. 	Therefore, 	PERB has no jurisdiction. 	I
am therefore 	dismissing 	the 	charge without 	leave 	to 	amend based
on the 	facts 	and 	reasons 	contained 	in this 	letter 	and my April
12, 	1991 letter.
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the charge by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of 	this 	dismissal 	(California Code of Regulations, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must 	be 	actually received 	by 	the 	Board
itself before 	the 	close 	of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or 	Express 	United States 	mail postmarked 	no
later 	than 	the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any 	other party 	may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar 	days
following the date 	of 	service 	of 	the appeal 	(California Code 	of
Regulations, title 8, 	section 32635(b)).

Dismissal 	of 	Charge 	and 	Refusal
to 	Issue 	Complaint
LA-CE-3059
May 	1, 	1991
Page 5
Service
All 	documents 	authorized 	to 	be 	filed herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a document 	served upon a party or 	filed
with 	the Board 	itself. 	(See California Code of 	Regulations,
title 	8, 	section 	32140 	for the required contents 	and a 	sample
form.) 	The document will be 	considered properly 	"served" 	when
personally delivered or deposited 	in the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with 	the 	Board 	itself 	must 	be 	in writing and 	filed with 	the 	Board
at 	the previously noted address. 	A request 	for an extension must
be 	filed at 	least 	three 	calendar days 	before the 	expiration of
the time 	required 	for filing the document. 	The request must
indicate good cause 	for and, 	if known, 	the position of 	each other
party 	regarding 	the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service 	of 	the 	request upon each party 	(California 	Code of
Regulations, title 8, section 32132).
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Marc 	S. 	Hurwitz
Regional 	Attorney
_
Attachment
cc: 	Ms. 	Rochelle J. 	Montgomery, Asst. 	Legal Adviser

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
April 	12, 	1991
Frank T. 	Mego Jr.
Re: 	Frank T. 	Mego Jr. 	v. 	Los Angeles Unified School
District. 	Unfair Practice Charge No. 	LA-CE-3059
WARNING 	LETTER
Dear Mr. 	Mego:
This will 	confirm, 	in relevant part, 	our telephone conversation
on April 	10, 	1991. 	The above-referenced charge was 	filed on
January 	30, 	1991. 	It alleges that the Los Angeles Unified School
District 	(District) 	took adverse action against you 	and 	committed
an unfair practice by violating Education Code, 	Section 45116.
section 	is 	found at Exhibit B, 	attached to the 	charge,
and provides,
1This
A notice 	of disciplinary 	action 	shall 	contain
a 	statement 	in ordinary 	and 	concise 	language
of the 	specific 	acts 	and omissions 	upon which
the disciplinary action is 	based, 	a 	statement
of the 	cause for the action taken and, 	if it
is 	claimed that an employee 	has 	violated a
rule or regulation of 	the public 	school
employer, 	such rule or regulation 	shall 	be
set 	forth 	in 	said notice.
A notice 	of 	disciplinary 	action 	stating 	one
or more 	causes 	or grounds 	for disciplinary
action 	established by any rule, 	regulation,
or 	statute 	in the 	language of 	the 	rule,
regulation, 	or statute, 	is 	insufficient for
any purpose.
A proceeding may be brought 	by, 	or on behalf
of, 	the 	employee to restrain any 	further
proceedings 	under 	any 	notice 	of 	disciplinary
action 	violative 	of 	this 	provision.
This 	section 	shall 	apply 	to proceedings
conducted 	under the provisions 	of Article 	6
(commencing with Section 	45240) 	of 	this
chapter.

Warning 	Letter
LA-CE-3059
April 	12, 	1991
Page 	2
I 	am 	treating this 	matter as 	a 	reprisal/discrimination case
alleging a violation of 	the 	Education Employment 	Relations Act
(EERA), Government Code section 3543.5(a).
My 	investigation of 	the 	charge 	revealed 	the 	following 	facts. 	You
have been and 	are 	currently 	employed by 	the District 	as 	a
permanent Heating and Air Conditioning Fitter.2 In 	1989, 	you
received a below standard performance 	evaluation. 	In or about
June 	1989, 	you contested the evaluation in writing. 	The District
subsequently 	corrected 	this 	matter 	by 	issuing you 	a 	satisfactory
evaluation instead. 	In or about March 	1990, 	you received a
conference 	memorandum which 	generally 	alleged 	that 	you 	submitted
exaggerated mileage 	claims 	(for about 	$40.00) 	and that 	you 	took
an unauthorized, 	extended 	lunch period on or about March 	8, 	1990.
You 	challenged 	these 	matters 	in part 	by 	contesting 	in writing 	any
mileage 	deduction being 	taken 	from your paycheck. 	On or 	about
May 2, 	1990, 	you received a Notice of Unsatisfactory Service or
Act and a 	Statement 	of 	Charges 	(attached as 	Exhibit A and D 	to
your 	charge) 	involving the 	above 	alleged 	unauthorized 	absence
from work and 	for 	claiming pay 	for 	time 	not worked. 	It was
recommended that you be 	suspended for three 	(3) 	working days,
from August 	13 through 	15, 	1990, 	which suspension you served.
Your 	appeal 	to 	the 	Personnel 	Commission was 	ultimately denied 	on
November 21, 	1990.
You 	generally 	contend 	that 	the 	four 	causes 	for disciplinary
action 	indicated were 	copied 	word-for-word 	from 	the 	District's
Personnel Commission Law and Rules No. 	902, 	Section A., 	Actions
Subject to Discipline, 	Items 3, 	4, 	7 and 	13, 	and are in violation
of 	Education Code Section 45116. 	Therefore, 	you 	contend that
such a 	notice of disciplinary action 	is 	insufficient 	for any
purpose. 	You 	requested 	that 	a proceeding be brought 	to 	restrain
further action against 	you, 	but you were 	instead 	subjected 	to 	a
mock appeals 	trial, 	placed at a disadvantage, 	and thereafter lost
the appeal, 	which was 	contrary to the 	Education Code. 	You have
advised 	me 	that due 	to 	the 	alleged 	violation of 	Education Code
Section 	45116, 	your right 	to 	represent yourself 	on the 	case was
harmed.
The 	allegations 	in your 	Statement 	of 	Charge do 	not 	state 	a prima
facie case. 	EERA 	section 	3541.5(a) 	does 	not allow a complaint to
issue 	regarding 	a 	charge 	based upon 	an 	alleged 	unfair practice
' There 	is 	a 	collective 	bargaining 	agreement 	(Agreement)
between the 	District 	and 	the 	Los 	Angeles 	County 	Building 	and
Construction Trades Council 	(Council), 	Unit E 	(Skilled Crafts)
with effective dates of June 	1, 	1987 	through July 	1, 	1992.

Warning 	Letter
LA-CE-3059
April 12, 	1991
Page 3
occurring more 	than 	six 	months 	prior to 	the 	filing of 	the 	charge.
It 	is 	the 	charging party's 	burden as 	part of 	the prima 	facie case
to prove the charge was 	timely filed. 	Furthermore, 	there 	is 	no
longer 	any 	equitable 	tolling 	of 	the 	six 	month 	limitations 	period.
The Regents 	of 	the 	University of California 	(1990) 	PERB Decision
No. 	826-H. 	Under EERA, 	the 	statute 	is 	only tolled during the
time 	it 	took 	for 	the 	charging party to 	exhaust 	the grievance
machinery. 	EERA section 	3541.5(a). 	You did not 	file a grievance
in this 	matter.3 Therefore, 	the 	statute began to run on or about
May 2, 	1990, 	and thereafter ran out on or about November 2, 	1990.
Thus, 	this 	charge 	is 	untimely and PERB has 	no 	jurisdiction.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If 	there are any 	factual 	inaccuracies 	in
this 	letter or any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	The 	amended 	charge 	should 	be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish to make,
and 	must be 	signed 	under penalty 	of perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served on the 	respondent4 and
the original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you before
April 	19, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
3Article VII of the Agreement, 	Non-Discrimination, 	prohibits
discrimination based 	upon union affiliation. 	Article V of 	the
Agreement, 	Grievance Procedure, 	does 	not allow you to grieve a
violation of Article VII. 	Thus, 	even if 	the Agreement did not
allow a 	grievance 	to be 	filed, 	the 	fact 	you may have 	exhausted
your 	administrative 	remedies 	under 	the 	appeals 	procedure 	did 	not
toll 	the 	statute 	for purposes 	of 	the 	EERA.
4 Ms. 	Rochelle J. 	Montgomery, Assistant Legal Adviser, 	Office
of the Legal Adviser, 	Los Angeles Unified School District, 	450
North Grand Avenue, 	Rm. 	A-337, 	Los Angeles, 	CA 	90012.